RAM SEWAK Vs. STATE OF U P

JUDGEMENT

(1.) G. P. Mathur, J. This appeal has been preferred by Ram Sewak against his conviction under Section 302 IPC and sen tence of imprisonment for life imposed by Sessions Judge, Deoria by the judgment and order dated 6-3-1981 in S. T. No. 179 of 1980.

(2.) THE case of the prosecution, in brief, is that the appellant Ram Sewak is son of Nakchhed, who was also an accused in the case but died during the pendency of the trial. Bundela is another brother of the appellant Ram Sewak. THE first informant Rajaram and the deceased Ramsajan were real brothers. THEre is a small pond towards south-west of the house of the first informant and about 30-35 paces north west of the said pond there is house of accused Nakchhed. THEre is a passage in front of the said house which meets the canal, which is on the west side, at a dis tance of about 50 paces and there is a culvert over the same. In the evening of 13-9-1978 Shriram son of Nakchhed and Shankar son of Dukhran were catching fish in the pond. A fight took place be tween the two boys and they started giving abuses. Ramsajan (deceased), who was returning from the market at about 5. 00 p. m. asked the boys not to fight and not to give abuses and came back to his house. After sometime he went to village Churawan-chak and returned from there after sometime. He met his brother Rajaram on the culvert and both of them then proceeded towards their house. THEy reached in front of the house of Nakchhed at about 6. 00 p. m. Nakchhed and his son Bundela then started giving abuses to Ramsajan saying as to why he had not permitted the former's son to catch fish. Hearing the abuses Thakur, Ram Asrey and Rudal also came on the spot. Ram sajan asked them not to give him abuses on which Nakchhed instigated that he should be assaulted. THE appellant Ram Sewak then brought a spear from his house and pierced the same on the chest of Ramsajan. Ramsajan fell down and died almost in stantaneously. Nakchhed, Ram Sewak and Bundela then ran away from the place of incident. THE body of the deceased Ram sajan was then brought to his house. After sometime, Rajaram scribed a report of the incident and thereafter proceeded to P. S. Kaptanganj, which is 8 miles from the place of occurrence. On account of the rainy seasons, he had to go via Hatta, which is a longer route and lodged the FIR of the occurrence at the police station at 10. 45 p. m. THE FIR was lodged in the presence of P. W. 6 Ram Shankar Singh Yadav, S. O. of P. S. Kaptanganj. Jagdamba Prasad, Head Constable, then registered the case in the General Diary and prepared the chick FIR Ram Shankar Singh Yadav com menced investigation of the case and recorded statement of the first informant Rajaram. THEreafter he proceeded for the spot where he reached at about 1. 00 a. m. He held inquest on the body of the deceased next day in the morning. He prepared necessary documents like photo fash, challan lash and a letter of request to the C. M. O. for conducting post-mortem examination. THE body was sealed and was sent for post-mortem examination through Mittu Prasad Yadav, Constable. He inspected the spot and found that con siderable amount of blood had fallen there. He took in his possession plain and blood stained earth, of there and prepared their recovery memo. He also prepared a site plan. After completing investigation he submitted charge-sheet against the three accused namely, Ram Sewak, Nakchhed andbundelaon 16-10-1978.

(3.) IN order to establish case, the prosecution has examined 3 eye-witnesses namely, P. W.-1 Rajaram, P. W. 3 Ram Asrey and PW-3 Rudal. PW-1 is the real brother of deceased Ramsajan and is the first in formant of the case. He has stated that towards south west of his house there is a pond and at distance of 30-35 paces towards north-west there is house of Nakchhed accused. A passage goes in front of his house which joins a canal at a dis tance of 40 paces over which there is a culvert. On the date of the incident, he had gone for attending the call of nature in the evening. While returning he met his brother Ramsajan on the culvert. He was returning from village Tola Churawan. At about 6. 00 p. m. they reached in frontof the house of the accused. Nakchhed and his son Bundela started abusing Ramsajan as to why he had not allowed Shriram (son of Nakchhed) to catch fish in the pond. Ram sajan objected to the abuses being given to him. Meanwhile, PW-3 Rudal, PW-2 Ram Asrey and Thakur came there and they also objected to the hurling of abuses. Nakchhed then instigated Ram Sewak to assault Ramsajan with a spear. Ram Sewak then went inside his house, brought a spear and pierced the same in the chest of Ram sajan. Ramsajan fell down and almost died instantaneously. The accused then ran away from the spot. He further stated that after an incident they brought the body of Ramsajan to his own house. After some time he wrote the FIR of the incident and went to P. S. Kaptanganj where the same was lodged at 10. 45. IN his cross-examination he stated that he had gone to the police station on a cycle. The inquest on the dead-body was conducted next day in the morning at about 8. 00 a. m. and the body was sent for post-mortem examina tion in the afternoon. He himself was a teacher in a school, which was about one furlong from his house and he had returned from there at about 4. 00 p. m. The house of PW-3 Rudal witness was 50-60 paces and PW-2 Ram Asrey witness was 100 paces from his own house. The assault was made at a distance of 10 paces from the house of the accused. IN his cross-examina tion he denied the defence suggestion that the incident did not take place in front of the house of the deceased or that no wit ness was present on the spot or that the FIR was lodged the next day in consult ation with the police.